Nuclear Waste Storage Facility (Prohibition) (Public Money) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 9 March 2016.)

Mr VAN HOLST PELLEKAAN (Stuart) (11:52): I am the lead speaker for this bill, and let me say at the outset that the opposition will not oppose passage of this bill through this house. If information comes to light that we think is important and we feel the need, we reserve our right to move amendments between the houses.

This is a very important bill, because it touches on an area of debate, research, discussion and investigation which is across our entire state and which is linked in with both the federal government's interest in having low to medium-level nuclear waste stored somewhere in Australia, and potentially in South Australia, and also the state government's royal commission which is looking at the entire nuclear fuel cycle with regard to mining, enrichment, power generation and also the storage of waste.

It is very important that everybody in this house and everybody who might have an interest in this bill particularly and in this debate does understand that, if this bill passes both houses of parliament, it would still be illegal for anyone to actually develop a nuclear waste storage facility, import nuclear waste or even to transport nuclear waste around the state. This bill itself addresses a very specific aspect of the broader act, and that is to remove clause 13. Clause 13 says:

Despite any other Act or law to the contrary, no public money may be appropriated, expended or advanced to any person for the purpose of encouraging or financing any activity associated with the construction or operation of a nuclear waste storage facility in this State.

To take those words out of the current act is the bill in itself, but, of course, all of the rest of the words in the current act stay and they would prohibit any actual development of a facility or the importation or the transport of nuclear waste.

So why would the government want to remove those words from the bill? Well, it is pretty straightforward and easy for everyone to see: it does actually want to spend money to consult, investigate, and encourage the potential development of a nuclear waste storage facility in South Australia. I think that is quite a reasonable thing to do, given the discussions that are going on at the moment. It is quite appropriate that the government should use its resources—keeping in mind that the government's resources are taxpayer funded—to investigate this topic.

The royal commissioner, the Hon. Kevin Scarce, has provided everyone with his interim findings and, while they are very broad and contain an enormous amount of information, the key thrust of those interim findings was an invitation for anyone who finds fault—in any way whatsoever—with the research he has done to please come forward and say so. If they think there is anything inaccurate or inappropriate about the conclusions he has come to, based on the research he has done or the evidence he has been provided with, they need to come forward. That is really what the interim findings are about.

Of course, along with that invitation he has put forward his personal expectation that down the track he will, at least for now, be discarding three of those four key issues. He will not be recommending more mining, he will not be recommending enrichment and he will not be recommending the pursuit of nuclear power generation in South Australia, but he probably will be recommending that South Australia takes a very active role with regard to importing high level nuclear/radioactive waste from nations which have used it for appropriate purposes, and tries to develop an industry in South Australia. He estimates that, as a state, we could receive something in the order of $5.5 billion per year for 70 years if we were to do this.

So it is quite appropriate for the government then to want to look into this. It is a very, very serious opportunity. It comes with risks, and the royal commissioner has not shied away from that either. There is a vibrant public debate, with some people thinking that the risks are too high and some people thinking that the risks do not exist and some people thinking that the economic benefits outweigh the risks. There is a wide range of issues out there, but I say again that it is quite appropriate for the government to want to look into these issues.

I have to say, though, that I am concerned about what I understand is the legal advice that the government has received that has led it to introduce this bill right now. Everybody here knows that I am not legally trained, but it seems very strange to me that the government would introduce the bill into this house—two weeks ago last sitting week—saying that it needs to be ready for when the royal commission finishes its work and releases its findings, that based on the information it already has from the tentative findings it needs to release this information now so that it can start spending money to investigate, consult and encourage the potential development of a nuclear waste facility.

I would think, by virtue of the fact that the government has already expended an enormous amount of taxpayers' money to establish the royal commission and, very importantly, that the government actually gave the terms of reference to the royal commission, one of which was to investigate the potential for our state to store nuclear waste, that if the government needed this act to be changed now so that it could consider the findings of the royal commission, it probably needed the act to be changed in advance of establishing the royal commission.

They have already spent the money. It was not a case of, 'Here's some money. Kevin Scarce, please look into whatever you want to look into.' They specifically said one of the four key elements of the terms of reference was to look into the potential for developing a nuclear waste storage facility in South Australia. They are now saying they need permission to consider not only the interim findings, but also, down the track, the final report. It seems to me that they needed that permission right up front. If they need it now, they needed it when they established the royal commission.

There is another key issue of concern for me—and I say concern specifically with regard to the bill; not the overall topic, and not the right for the government to be doing its homework, essentially. The government proposes that if the bill passes both houses of parliament, it would come into effect when it was introduced to parliament two weeks ago. That implies that the government needed to have had the power two weeks ago from today and, at the very earliest, four weeks ago from when it is likely to pass it. If it gets through the upper house in two weeks' time, that would be backdated, roughly, a month.

Why would they need it to have been implemented two weeks ago if they have not already started to spend the money to do the things that the act currently says, very specifically, the government should not spend the money on? The only reason they would need that is if they have already started spending the money.

It seems to me very likely that the government has already infringed upon the act as it stands today, otherwise why would it need it to be backdated? If it needed to be backdated for a particular reason, if it has not spent any money in any of the ways that the act says it should not spend money, if it has not done that already then why would the act need to be backdated?

There are some very serious questions, and I would be grateful if the minister would address them in his comments, or we could do it in committee. Those are the reasons that the opposition will allow the bill to pass through this house, but does reserve its right to move amendments in the upper house if information comes to light that means that it would be appropriate to do so.

Let me just go back to something I said before. What I am talking about right now, and what we are here to debate, is the government's right to spend public money for the purpose of encouraging or financing any activity associated with the construction or operation of a nuclear waste facility in the state. We are not talking about whether having a facility is appropriate or not; we are not talking about whether the government should spend money or not. We are talking about whether the government needs this act to pass through parliament right now and whether, potentially, it needed to be passed before the royal commission was set up, and we are talking about: why has it asked for this permission to be backdated if, in fact, it has not already contravened the existing act?

I leave my comments at that. Let me saying in closing that I am extremely comfortable with the work that the royal commission is doing. I think that Kevin Scarce is an exceptionally highly regarded, capable, objective person. I believe very strongly that whether a person is completely opposed to anything to do with the nuclear industry, or has already made up their mind and is already in favour of it, regardless of someone's personal opinion they should welcome the royal commission because this is the opportunity to get all of that information out in a very thorough and very professional way.

The fact that we have a royal commission does not mean that people need to be scared of it. It gives people who are opposed to the nuclear industry as much opportunity to put their views forward as it does people who are in favour of the nuclear industry. I really just cannot wait until 6 May. As a member of parliament, as shadow minister for mineral resources and energy, and also as a country and outback member of parliament whose home turf, potentially, could be very affected by the outcomes of this royal commission, I really want to know what the royal commissioner is going to propose. I think it is going to be incredibly important, whatever he puts forward.

It is also important for people to understand that part of his interim findings was that, whilst he was saying pretty clearly that he thinks there is a strong possibility that it would be very good for the state to participate in the storage of other nations' high-level nuclear waste, he also said (and he has repeated many times, and it is my strong opinion as well) that it should not happen without broad community consent. It should not happen without broad community consent.

So, whatever the commissioner puts forward will not set the path forward automatically for us. There are many other issues that need to be dealt with before we could go through this, but it is an important process to undertake. I ask the minister very specifically to explain why, if the legal permission is required now to investigate the interim findings, it was not required to establish the royal commission in the first place, and also why it is necessary to backdate this bill two weeks earlier from today if the government has not already spent money and contravened the act as it stands today?

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:06): I endorse the reasons outlined by the shadow minister, very adeptly and ably, and I agree to support the passage of the bill through this house, with the reservations he has outlined. I also agree that it has been very important for the government to have this inquiry. I still do not know why it had to be under the Royal Commissions Act, and cost now $9 million, but nevertheless it is no reflection on the commissioner appointed: Mr Scarce is a former governor and obviously has sufficient experience to have conducted the inquiry.

I suspect that it is under the Royal Commissions Act so as to ensure that people who are objecting to any development of mining, enrichment, power generation or even waste repository advances cannot make public criticism of the development of that. It is a very sneaky way to do it, but I am used to that with the government. How do you shut up the critics? You have a royal commission. Nevertheless, we are here today to try to remedy what could be a situation—

Members interjecting:

Ms CHAPMAN: No, they will not be able to use the Royal Commissions Act over Bragg, that is for sure. However, I do say that the issue now is, having commenced that inquiry, having progressed to have certainly the only time I have ever known interim findings to be published by a royal commissioner, to then consult further and tidy up the judgement for release, now on 6 May.

There certainly have been royal commissions where interim reports have been given. I can recall one of course into institutional abuse against children, where an interim report was provided by the late Ted Mullighan QC, former judge and commissioner of that inquiry. It was to deal with discrete matters, and he made that determination as an interim report and then gave a subsequent two reports, both on institutional abuse and abuse on the APY lands. So, that is a different format.

In this instance though, the commissioner provided in February a draft report, so everyone could have a say again, I think in his words, to get things exactly right. He will then publish his final determination on 6 May. As outlined by the shadow minister, three of the principal areas of inquiry appear to have been dismissed in the draft report by the commissioner, and he is still working on the fourth.

What I would like to know, more specifically, is why this bill came two weeks ago, under the cover of the visiting federal cabinet to South Australia, brought into this parliament, asking for retrospective protection for the $9 million that is already spent. Has somebody already threatened to prosecute them? Has the DPP already received a request to prosecute the government for breach of the act? Is there legal advice that has now hurriedly been obtained that says, 'Hell, you're going to be in lots of trouble unless you get this bill through and in a hurry'?

We are entitled in South Australia to know that. Has the government put us at risk of the government of this state being prosecuted for spending now $9 million on an inquiry, clearly with an intent to spend more because that has been outlined in the second reading speech for this bill? We are entitled to know about it. So I ask the Treasurer to come clean in this debate and tell us what is going on. What is the need for the retrospectivity? It has already been asked by the shadow minister, but I want to know more than that.

I have seen some of the submissions put to this commission; one of them was from the Law Society of South Australia and it outlined a myriad of legislation that would need to be amended or repealed or advanced and passed to enable the development of any of the four areas—a whole list of them. I had that over a year ago, and it was published as one of the submissions, so it is not as though all the people in the government could have been sitting there with their sunglasses and earmuffs on and not understood that this was a serious situation.

I do not know what is going on in the government in relation to this matter. It does not sound like very much. It sounds like someone in a hell of a hurry cobbled together a request for urgent advice to be able to deal with a potential major problem that would derail an otherwise important investigation. The government needs to come clean—$9 million dollars worth of coming clean. We want some answers.

The Hon. A. KOUTSANTONIS (West Torrens—Treasurer, Minister for Finance, Minister for State Development, Minister for Mineral Resources and Energy) (12:11): I am enjoying watching the new routine by the presumptive leaders of the Liberal Party and either the past or future deputy leader. I think it is a very good team to watch and I am sure their colleagues are sitting up in their offices—

The DEPUTY SPEAKER: Minister!

The Hon. A. KOUTSANTONIS: —listening to the new team—

The DEPUTY SPEAKER: Minister!

The Hon. A. KOUTSANTONIS: —clearing out the pipes, getting ready for after the double dissolution election.

Members interjecting:

The DEPUTY SPEAKER: I allowed you a lot of latitude as well.

Members interjecting:

The DEPUTY SPEAKER: Order! The question before the house is that the bill be read a second time.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: When did the government first seek advice from the Crown Solicitor as to the need for this legislation and for it to be retrospective?

The Hon. A. KOUTSANTONIS: I would have to check whether or not we received specific advice as pointed out in the loaded question from the Deputy Leader of the Opposition. I refer the deputy leader for the reasoning of this bill to the Premier's ministerial statement.

Ms CHAPMAN: I know that, but I am asking for your advice. Secondly, if the minister is going to make that inquiry will he make that available between the houses?

The Hon. A. KOUTSANTONIS: First and foremost we do not make legal advice available—

Ms Chapman interjecting:

The CHAIR: Order! You can have a turn in a second.

The Hon. A. KOUTSANTONIS: First and foremost, the leader made a—sorry, I am being a bit early—

The CHAIR: Minister!

The Hon. A. KOUTSANTONIS: —the deputy leader—

Members interjecting:

The CHAIR: Order! Mind on the job everybody.

The Hon. A. KOUTSANTONIS: Yes, ma'am. The leader asked a question presuming that we had received advice from the Crown Solicitor asking us to introduce this bill. What I will do is, first, verify whether that is accurate and, secondly, if it is accurate, give the deputy leader the date. However, the reasoning given to the house for this bill was outlined in the Premier's ministerial statement under the cover of parliament before question time, not under cover of darkness.

The CHAIR: Order!

Mr VAN HOLST PELLEKAAN: Reading directly from the minister's second reading speech, which was inserted in the Hansard, I quote:

The repeal of section 13 is necessary because it has the potential to inhibit public consultation on the merits of a nuclear waste storage facility once the Nuclear Fuel Cycle Royal Commission hands down its final report to the government on 6 May 2016.

So why is this bill required to come into force now?

The Hon. A. KOUTSANTONIS: If you read the Premier's ministerial statement—

Members interjecting:

The DEPUTY SPEAKER: Order!

The Hon. A. KOUTSANTONIS: —that will not inhibit in any way—we do not want section 13 to inhibit in any way our ability to consult with the public or give the royal commission any problem with the public or indeed the government on what the proposal is. As the Premier said in his ministerial statement, it is to ensure that we can have a thorough debate of ideas. I am just surprised that anyone is concerned about it.

Mr VAN HOLST PELLEKAAN: Given that the royal commission was established by the government and given that the royal commission has already started discussing all these issues with the public and given that the legal advice says the bill should be passed, why wasn't it necessary for it to be passed before the royal commission was established?

The Hon. A. KOUTSANTONIS: Because that was presupposing the outcome of the royal commission. The royal commission could have come back and said, 'None of these things are viable.' Once the royal commission made an interim report, that went out for consultation and talked about some possibilities. Then it was prudent to act. Before then, it would not have been prudent.

Mr VAN HOLST PELLEKAAN: Minister, it was always possible that this was going to happen. The government provided the terms of reference. The government provided the four terms of reference. I cannot accept that the government would have provided four terms of reference to the royal commission expecting that every single one of them would have been knocked back.

The Hon. A. KOUTSANTONIS: The thing about royal commissions is that they are independent. After they are given the terms of reference, they can find whatever they like. It concerns me, given the shadow minister's view about how royal commissions are conducted, that he thinks you can have a pre-determined outcome. The royal commissioner will find and determine whatever he pleases, and the government cannot influence his decision one way or another. Once he made his interim findings, it was appropriate that we act.

Ms CHAPMAN: On the question of the need to make it retrospective, if the royal commission is to be independent—and all the commissioner has done at this stage is publish interim findings, draft as they are—why is it necessary for the government to spend any money to encourage or discourage any further aspect of the commission until the commissioner gives his final determination on 6 May? Any expenditure either way by the government would surely be seen as a threat to interfere with the independence of the royal commission.

The Hon. A. KOUTSANTONIS: I do not accept that. The government expending money does not inhibit the independence of the royal commissioner. The royal commissioner can say and do as he pleases. The government expending moneys—

Ms Chapman interjecting:

The Hon. A. KOUTSANTONIS: Well, I will refer you again to the Premier's statement to the house after a precis of what was occurring. He said, 'It is expected that this engagement process will take place between May and August this year'—

Ms Chapman interjecting:

The Hon. A. KOUTSANTONIS: Well, first and foremost, it is important to protect the royal commission's findings. There are interim findings in place. It is appropriate that, after the interim findings were announced publicly—and, I have to say, welcomed by the opposition (although you could not tell today) and by the government—there be a period of consultation. There is an act of parliament that specifically prohibits a concrete proposal being even debated by the government.

It seems to me an appropriate use of the parliament's time to ensure that the community and the public can see all of these issues debated and discussed publicly without their fear of anyone being in breach of any act. The retrospectivity, of course, is in place—with all due respect to our colleagues in another place, often legislation does not pass in very speedy and quick time, as has been witnessed in the commonwealth parliament, hence the Prime Minister's call to prorogue the parliament and bring it back—

The CHAIR: Yes, okay, moving on.

The Hon. A. KOUTSANTONIS: Thank you—therefore, that is why retrospectivity is in place, to protect people on the passage of this bill in the upper house.

Mr VAN HOLST PELLEKAAN: Minister, why is it necessary to make this bill retrospective two weeks, giving the government permission to spend public money on this issue, if the government has not already spent it?

The Hon. A. KOUTSANTONIS: That question does not make any sense.

Mr VAN HOLST PELLEKAAN: It does actually. This bill has not passed parliament. The government is asking us to make this bill retrospective, back to two weeks ago. Why is it necessary to make it retrospective? Why is it necessary for the government to have the permission backdated to spend public money if it has not already spent the public money?

The Hon. A. KOUTSANTONIS: It is just a date we chose. We could have chosen any date. What we have done is we have done it from the date we announced it which is generally the regular operation of acts as they come into effect from the date of announcement.

Ms Chapman: Rubbish! You have been here all these years, Tom. That's rubbish.

The CHAIR: Order! You cannot call him by his first name.

Mr VAN HOLST PELLEKAAN: Minister, has the government spent any money already that would be in contravention of clause 13 in the current act?

The Hon. A. KOUTSANTONIS: My advice is no.

Ms CHAPMAN: Did the commissioner ask the government to introduce a bill with this content?

The Hon. A. KOUTSANTONIS: Not that I am aware, but I will check.

Clause passed.

Clause 2.

Ms CHAPMAN: Has the government or the commissioner, to your knowledge, received any correspondence from anyone threatening to pursue the question of breach of the act that we are currently attempting to repeal?

The Hon. A. KOUTSANTONIS: Not to the knowledge that I have just been advised, but given the opposition's protest I am sure we will as of today.

The CHAIR: Could we perhaps ask you, Deputy Leader, if you are aware of any and save ourselves a lot of time? Again, you are not?

Ms CHAPMAN: I hope this comes at question time where we can actually answer the questions.

The CHAIR: I am only trying to facilitate matters. I was prepared to let you ask as many questions as you like at clause 1 rather than drag us through each clause and torture us at each clause.

Ms CHAPMAN: I am happy with what the minister has said. As I understand it, he says to his knowledge there has been no indication to the government or the commissioner—

The CHAIR: We have heard his answer; you do not need to repeat it. Is there another question?

Ms CHAPMAN: No, I do not need any other answers.

Mr VAN HOLST PELLEKAAN: On clause 2, minister, you have told us very clearly that the government has not spent any money in contravention of clause 13 of the current act. When does the government intend to start spending money to consult or encourage the potential development of a nuclear waste repository?

The Hon. A. KOUTSANTONIS: It is difficult to say. One, we will have to wait for the final recommendations of the royal commission; they can change. The royal commissioner is an open-minded man. He may receive evidence between now and his final report that gives him cause to change his recommendations. If this bill does not pass, and the recommendations are made, we may need to seek some further advice about what we do then, but I suppose in a perfect world once the final recommendations are made and the bill passes, the government can then entertain looking at those recommendations and then acting upon them in one way or another. The Premier has made it very clear no final decision has been made and we want to go out and consult with the public.

Mr VAN HOLST PELLEKAAN: Would the government then be amenable to having this bill, if it passes both houses of parliament, start on, or whenever practicable after 6 May?

The Hon. A. KOUTSANTONIS: No. The government asked that the date be the date it was introduced into the parliament, and we expect that to be honoured.

Mr VAN HOLST PELLEKAAN: What does honoured mean? It was a request, and then people say yes or no. Minister, you just said—

Ms Chapman interjecting:

The CHAIR: Order! There seems to be a certain tension and lack of goodwill in all of this. Just ask the questions nicely; I just do not think there is a problem. If you have a question, he will answer it.

Mr VAN HOLST PELLEKAAN: Minister, in your answer to my question about when the government intends to start spending money for this purpose, you essentially said when the final report comes out. That led me to then ask if the government would be amenable to having this bill come into effect when the final report comes out, if the recommendations of the final report indicate that it would be appropriate for the government to spend public money to consult and to encourage the potential development of a nuclear waste storage facility in South Australia.

The CHAIR: That is the same question and the answer will be the same, and you have taken umbrage at the fact that he said 'honoured'.

The Hon. A. KOUTSANTONIS: The government made an announcement that we want the bill to come into effect in this state. If the parliament changes, the parliament changes. If the opposition now want to be recalcitrant and do that, it is entirely up to them.

The CHAIR: No need; that is enough.

Ms Chapman interjecting:

The CHAIR: That's enough.

Mr van Holst Pellekaan interjecting:

The CHAIR: Order!

Clause passed.

Remaining clauses (3 and 4) and title passed.

Bill reported without amendment.

Third Reading

The Hon. A. KOUTSANTONIS (West Torrens—Treasurer, Minister for Finance, Minister for State Development, Minister for Mineral Resources and Energy) (12:27): I move:

That this bill be now read a third time.

Bill read a third time and passed.